Judicial Resources

In the course of this Review the issue of whether Ontario has
enough judges in the civil courts was frequently raised, both by
judges and members of the bar. The cry for more judges was heard
most loudly in the Central West (Brampton), Central East
(Newmarket), Central South (Hamilton), Toronto and East (Ottawa)
regions.

This issue has also been the subject of comment by Chief
Justice Smith, to date without any concurring response from the
federal government. The Chief Justice's core rationale in her
pursuit of more judges has been the significant increase in
Ontario's population since 1990 and the federal government's
failure to respond by appointing more Superior Court judges. This
issue in our constitutional scheme of things involves the federal
government. If there is a judicial complement problem, it is
provincial. The solution (appointing more judges) lies with the
federal government.

My Terms of Reference do not extend to either family law or
criminal law. However, in trying to determine whether there is a
case to be made for more federally appointed judges in Ontario, I
cannot ignore the extent to which family and criminal matters
consume judges' time. This is so because of the constitutional
imperative to bring criminal maters to trial within a reasonable
time (see s. 11(b) of the Canadian Charter of Rights and
Freedoms) and the institutional, and sometimes statutory,
imperative to assign priority to family law matters, particularly
those that involve children.

There is no doubt that Ontario's population has increased
since 1990. If all else is held constant, more people will yield
more civil action activity and, for that matter, more criminal
and family business for the courts.

I expect that if the central recommendations in this Report
are implemented, there will be what I hope is a marked reduction
in the cost and time required to bring a civil action that does
not settle to trial. Thus, access to justice will be enhanced.
Any efficiency gains derived from the implementation of this
Review's recommendations will, of course, have to be taken into
account in determining whether the complement of Ontario's judges
should be increased and if so, where. The “if so,
where” aspect of the analysis is important. As I will
explain, in some judicial centres in Ontario the need for more
judges is palpable to the extent that, I think, an overwhelming
case exists for increasing the number of judges there.

Deploying judges by moving them between or within regions is
not the answer. No region, with the possible exception of the
North West, has a surplus of judges. At best, moving judges
(which occurs now) represents a short-term demand-based solution.
It is impractical to think that judges can be asked to sit in a
region geographically remote from their offices and homes for any
extended period.

Since merger of the courts in 1990, the judicial complement of
Ontario's Superior Court has increased by 40, to a total of 223
judges 9 (a 22% increase since 1990). All of the increases in the judicial complement have been directly
related to the need to bring criminal matters to trial within a
reasonable time (the response to Askov) and to take
account of Family Court expansion. No new resources have been
added to specifically address civil caseloads.

According to Statistics Canada, Ontario's population increased
by 26% between 1991 (10,084,885) and 2007 (12,726,336). In some
discrete areas, population growth between the 1996 and 2001
censuses was significant: in Barrie (31%), Brampton (21%),
Mississauga (13%), Whitby (18%) and Newmarket (15%). In other
locations, population remained relatively constant over the same
time period, either decreasing or increasing slightly –
e.g., –7% in Sudbury to +7% in Ottawa.

Based on the best available data, Ontario has the highest
population-to-judge ratio of all Canadian jurisdictions. That is
to say, there are more people per judge in Ontario than is the
case in any other province or territory in Canada. In addition,
unlike Ontario, other provinces do not have Regional Senior
Judges or Senior Family Judges.

Supernumerary judges have been statistically viewed as
one-half of a regular sitting judge. There is no doubt that some
supernumerary judges sit a full schedule or close to it. However,
most have a sitting schedule of about half that of a
non-supernumerary judge. Because of their reduced schedules,
supernumerary judges frequently cannot be expected to preside
over long trials.

In addition, although supernumerary judges are essential to
the civil justice system, one has to recognize supernumerary
status is a product of the judge's age and length of service. The
election is that of the judge. The number of supernumerary judges
in a particular region or judicial centre is unrelated to
caseload demand. An election by a judge for supernumerary status
does, however, trigger the appointment of a replacement for the
supernumerary judge. As is the case with regular judges, some
supernumerary judges deal with criminal and family law matters.
To the extent that occurs, it is manifest the supernumerary judge
is of no assistance in moving civil matters through the
system.

While the statistics on population growth and
population-to-judge ratios are compelling, they do not paint a
complete picture of the crisis on the ground in some of Ontario's
civil courts. In my view, a greater focus is needed on the
problems at individual court locations.

A useful way to assess the relevant volume of business in a
particular region or courthouse is to determine the number of
defended actions there. This approach is based on the premise
that judges, for the most part, are not involved in matters that
are undefended. It should be noted that looking solely at the
number of defended matters, although useful, does not take the
length and complexity of those matters into account. In that
context the number-of-defended-cases analysis is unfair to the
Toronto region, which, anecdotally, tends to have longer and more
complex cases than do other regions.

Taking the number of defended cases by region, or even by
courthouse, and dividing by the number of judges available at a
given time sheds some light on the workload of the court measured
per judge. It does not, however, take into account the length and
complexity of the matters before the court or the number of
interlocutory proceedings that have to be accounted for. More
significantly, unless judges who are assigned to family and
criminal matters are factored out of the calculus, the results
will not reasonably reflect the non-family civil work of the
court on a per judge basis.

In any event, it is clear to me, based on the ratio of
defended cases to judges and other submissions I heard or
received, that more judges are urgently needed in the following
regions: Central West (Brampton), Central South
(Hamilton/Kitchener), Central East (Newmarket) and probably
Toronto.

One does not have to spend much time in the Brampton and
Newmarket courthouses to realize how busy those judicial centres
are. Simply put, there are too many cases per available judge.
Coupled with other aspects of the civil justice system, this has
led to delays that should no longer be tolerated.

In my view, consideration of any increase should start with
consultation at the local level. An analysis of several factors
will be required, including local population growth, trends in
civil case activity, increases in the volume of work in criminal
and family matters, courtroom operating hours for civil matters
compared to criminal and family matters, and any available data
on the delays in having civil matters heard.

I should say something about the specialization and assignment
of judges. Where resources permit, the system will work more
efficiently if, at the management, motion and trial level,
assigned judges have some experience in relation to the issues
that are being litigated. That happens systemically in Toronto
where the court is subdivided (commercial list, family, criminal,
etc.). This approach, which I endorse, only works if there is a
sufficient number of judges to populate several branches of the
court.

I would expand specializations to identified cases, or classes
of case, where feasible. Medical malpractice and hospital
negligence cases provide a useful example. The problem with these
cases is not their number but rather their length and complexity.
If managed and tried by judges with some experience in such
matters, these cases would move through the system much more
efficiently.

I would add that I see no reason why the management judge
should not be the trial judge, and hear motions, unless that
judge is somehow involved in, or informed of, settlement
discussions. In any case, it seems to me that the rule, not the
exception, should permit a case management judge to be the trial
judge, subject veto rights of the parties and the judge.

If changes are made that will free-up resources, it would be
useful for the court to consider, at least experimentally,
individual dockets for trial judges, that is, assigning a case to
a particular judge at the outset. Given the state of available
technology, the fact that in some regions judges travel should
not foreclose that option. It has proved to be workable and
efficient in the United States. It should be considered here at
least for complex, time consuming matters.

Finally, during consultations, an ongoing need was noted for
the appointment of more bilingual judges, particularly in Toronto
(including the Court of Appeal). Any future appointments should
consider the need for bilingual judges in regions which at a
practical level are required to provide bilingual trials.

Recommendations (Judicial
Resources)

The need for additional Superior Court judicial resources
in Central West (Brampton), Central South (Hamilton/Kitchener),
Central East (Newmarket), and probably Toronto, is compelling.
The federal government should forthwith give immediate
consideration to an increase in the complement of Superior
Court judges in those judicial centres. Any future appointments
should expressly consider the need for bilingual judges within
a given region.

In the longer term, the needs of the civil justice system
from the standpoint of number of judges required should be the
subject matter of a structured analysis by the federal
government. That analysis should be undertaken after broadly
based consultation with the Ministry of the Attorney General in
Ontario. That consultation is necessary since the Ministry of
the Attorney General has much of the evidence to support, or
otherwise, the case for more judges. In our constitutional
scheme of things, the problems are provincial. The solution in
relation to the number of judges reasonably required is a
federal matter. The analysis should also take account of the
impact of family law and criminal matters in relation to judge
time and courtroom availability for civil matters, and the need
for bilingual judges.